Tablet Magazine has a fascinating account, with a strong Establishment Clause angle, about a Jewish father of five, who separated from his ultra-orthodox wife, and fought a custody battle in Rockland County:
Married for nearly 15 years, my wife and I chose, in December of 2007, to part ways. Our divergent worldviews and religious differences had brought acrimony and tension into our day-to-day lives, and it had created an untenable situation in our home. While I was committed to maintaining religious observance when around family and community, I was no longer a believer. My wife, however, could not stomach a heretic in our home, and I could not stomach her scrutiny of our credit card statements for charges at non-kosher restaurants.
We agreed to resolve matters about the children between us, but several months later, I found myself in family court, facing complaint after complaint on minor matters of religion and Hasidic custom. I was wearing jeans when I picked up the children, one petition read. I fed them matzo on Passover that was square and machine-baked, rather than round and handmade, read another. There was concern that I might take the children to “atheist places”—which I could only surmise meant natural history museums or maybe a movie theater. And so she wanted me out of our children’s strictly Hasidic lives.
The complaints were brought by my ex-wife, but I knew also that community “experts” were involved. One community member in particular, one of my ex-wife’s relatives, tasked himself as overseer of my children’s fates. As he told one of my own family members: “We may not have a legal case. But we can beat him down emotionally and financially. He’ll have to give up eventually.”
I remember laughing when I heard it. It sounded ludicrous. A family court judge could not rule on the basis of religion, I imagined. I was unaware that even with a strong case, custody battles could cost many tens of thousands of dollars, which the community could easily raise but I could not. I was unaware that, when held in Rockland County, N.Y.—a hub of American ultra-Orthodoxy, less than an hour north of New York City—custody battles required rabbis, community leaders, and Orthodox family therapists on your side. I was unaware that family courts were also part of the local political machinery and that elections and constituencies were never far from a judge’s mind. I was unaware that my relatively meager resources were no match for a powerfully resourceful community with an ideological stake in the future of my children. Most of all, I was naive about the powers of religious extremism to control the minds of children themselves.
Family law is one of those rare instances where the Court must consider the religious issues. But the resolutions here are very, very troubling.